Elections for seats on the respective governing boards of the State Bar of Arizona and the State Bar of Nevada kicked off coincidentally on the same day, May 4, 2017. Although I’m an active member of the Nevada Bar, I can’t vote in board elections since I’m no longer a full-time resident of the Silver State. For this out-of-state Nevada lawyer, it’s taxation without representation, including coming new burdens like the board-approved extra hour of mandatory continuing legal education to support lawyer sobriety and sanity.

But even if I wanted to vote in Nevada, I haven’t a clue or a care about who’s running. Not like I know much about the 20 candidates running for 9 seats in Maricopa County, Arizona. Talk about a crowded field. Arizona has a 30-member board that “oversees the policy making and operation of the organization.”

There’s only one openly declared reformer, although there may be one or two stealth nonconformists in the field. But if they’re not saying, who knows for certain?

The fact is it’s nothing but a popularity contest anyway. The candidates are largely unknown to most lawyers. How are you supposed pick 9 out of 20? It’s almost like a judicial retention election. So expect a lot of undervoting.

For lawyers in Pinal County, Arizona’s third-most populous county, there’s only one choice since only one candidate bothered to run. No surprise, it’s the pro status-quo incumbent.

What representation?

Taxation without representation used to be the order of the day here at least for board elections. But starting May 4th, out-of-state active members of the Arizona Bar can vote. Inactive and retired members, though, still have to assume the position. They can’t vote even though the Bar happily collects a yearly $265 and $215 respectively, for the compulsory ‘privilege’ of subsidizing a bloated bureaucracy.

The ugly truth is that even with the opportunity to vote, it’s taxation without representation just the same. State bar governing boards are free to act without the consent of those they supposedly represent, especially since board members don’t act as their actual representatives. Board members don’t serve to deliver the views of those that elected them. They’re told to be trustees of the public interest not guardians for the well-being, prosperity, and happiness of lawyers.

Unfortunately for candidates and their electors, it’s a conflicted interest that most who run haven’t acknowledged, understood or reconciled. They sidestep the Bar-advertised to serve-and-protect mission of regulating lawyers to protect the public. Instead, they campaign like they’re running for a trade associationwith promises of giving “increased value to all of its members—without imposing additional regulations” or providing “valuable services to its members.”

Term limits and beans.

Still, at least there will finally be new faces on the Arizona Board. That’s because the only good news coming out of the 2015 State Bar Mission & Governance Task Force was the overdue imposition of term limits on board members who with not much better to do wouldn’t go away. Holy frijoles, some of those board members were nearing 20 years on the board!

The new rule says a board member can serve “no more than three consecutive three-year terms.” Alas, like the proverbial bad penny, if after 9 consecutive years they sit out a full term, they can seek reelection to additional terms.

In Arizona, the election runs 15 days until 5 pm Friday, May 19th. Not that apparently members care. Based on voter turnout for the 2014 Arizona Bar Board Elections, fewer than one-quarter of active Arizona attorneys gave a hoot or a clue about voting for the candidates running that year.

In 2014, only 4093 members cast votes — and that was with much more interest and aggravation since the board had just passed an unwarranted dues increase. Clearly, the disinterest, resignation, and apathy is worse among lawyers than for political elections. With that in mind, I think voter turnout may be even less this time.

The solution.

The real solution is not a board election or ginning up voter enthusiasm. Structural change won’t come from within. The status quo is too well entrenched. The true believers are too satiated drinking bar integrationKool-aid.

Mandatory bars like Arizona’s and Nevada’s need to be split between a mandatory membership component that regulates lawyers to protect the public and a purely voluntary membership component that looks out for lawyers. Such a division of functions at last fixes the existing confusion and conflict between board members who view the mandatory bar as a regulatory agency and those who see its purpose as promoting member interests.

This means supporting reforms — either legislatively or through court petition. It doesn’t mean voting for more of the same.

Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!”

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting virtually guaranteed retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

In his report, “Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.” And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article,also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.”

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

As for the friendly state bar’s contest, one hopes this benignly lame effort isn’t its best shot at trying to tamp down on undervoting.

And according to the Arizona Bar, its own members — the ostensible contest participants, don’t fit the Instagram demographic either. While most of the Bar’s members are in their middle-earlies, i.e., their 40’s and 50’s — more than three-fourths of the 23,024 active and inactive members are not only well past 40 but almost a third of them are over 60.

Then there’s the pachyderm in the room. Lawyers have never been early-adopters of anything new, especially technology and social media.

And while one lawyer marketing site claims Instagram may potentially have creative value for “brand awareness,” the same site also adds that its benefits as a lead generator “may be negligible.”